Silva v. Kijakazi, No. 1:2022cv03139 - Document 17 (E.D. Wash. 2023)
Court Description: ORDER REVERSING THE DECISION OF THE ALJ AND REMANDING FOR FURTHER PROCEEDINGS. File is CLOSED. Signed by Senior Judge Edward F. Shea. (SG, Case Administrator)
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Silva v. Kijakazi Doc. 17 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 1 PageID.868 Page 1 of 22 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Jul 12, 2023 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 SALVADOR S., 1 7 1:22-cv-3139-EFS Plaintiff, 8 9 No. v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, ORDER REVERSING THE DECISION OF THE ALJ AND REMANDING FOR FURTHER PROCEEDINGS 10 Defendant. 11 12 Plaintiff Salvador S. appeals the denial of benefits by the Administrative 13 14 Law Judge (ALJ). Because the ALJ failed to address Plaintiff’s claimed 15 impairment of fibromyalgia, the ALJ’s decision lacks the requisite supporting 16 substantial evidence. The Court therefore reverses the decision of the ALJ and 17 remands this matter for the ALJ to properly consider fibromyalgia and conduct the 18 sequential evaluation anew. 19 // 20 21 1 22 23 For privacy reasons, Plaintiff is referred to by first name and last initial or as “Plaintiff.” See LCivR 5.2(c). ORDER - 1 Dockets.Justia.com Case 1:22-cv-03139-EFS I. 1 ECF No. 17 filed 07/12/23 PageID.869 Page 2 of 22 Five-Step Disability Determination 2 A five-step evaluation determines whether a claimant is disabled. 2 Step one 3 assesses whether the claimant is engaged in substantial gainful activity. 3 Step two 4 assesses whether the claimant has a medically severe impairment or combination 5 of impairments that significantly limit the claimant’s physical or mental ability to 6 do basic work activities. 4 Step three compares the claimant’s impairment or 7 combination of impairments to several recognized by the Commissioner to be so 8 severe as to preclude substantial gainful activity. 5 Step four assesses whether an 9 impairment prevents the claimant from performing work he performed in the past 10 by determining the claimant’s residual functional capacity (RFC). 6 Step five 11 assesses whether the claimant can perform other substantial gainful work—work 12 that exists in significant numbers in the national economy—considering the 13 claimant’s RFC, age, education, and work experience. 7 14 15 16 17 2 20 C.F.R. §§ 404.1520(a), 416.920(a). 3 Id. §§ 404.1520(a)(4)(i), (b), 416.920(a)(4)(i), (b). 4 Id. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c). 5 Id. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d). 6 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 7 Id. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g). 18 19 20 21 22 23 ORDER - 2 Case 1:22-cv-03139-EFS ECF No. 17 II. 1 filed 07/12/23 PageID.870 Page 3 of 22 Background 2 In September 2019, Plaintiff filed an application for benefits under Title 16, 3 claiming disability based on low vision, depression, anxiety, stress, social anxiety, 4 bipolar disorder, shoulder pain, and fibromyalgia. 8 Plaintiff alleged an onset date 5 of April 26, 2019. 9 After the agency denied his application initially and on 6 reconsideration, Plaintiff requested a hearing before an ALJ. In June 2021, ALJ 7 S. Pines held a telephonic hearing at which Plaintiff and a vocational expert 8 testified. 10 In August 2021, the ALJ issued a written decision denying disability. 11 As 9 10 to the sequential disability analysis, the ALJ found: • 11 Step one: Plaintiff had not engaged in substantial gainful activity since September 3, 2019, the application date. 12 • 13 Step two: Plaintiff had the following medically determinable severe 14 impairments: shoulder dysfunction, hiatal hernia, gastroesophageal 15 reflux disease, severe anxiety, and depression. 12 16 17 18 8 AR 161, 179, 196–200, 225, 241. 9 AR 170. 19 20 10 AR 32–54. 11 AR 15–26. 12 AR 17. 21 22 23 ORDER - 3 Case 1:22-cv-03139-EFS • 1 ECF No. 17 filed 07/12/23 PageID.871 Page 4 of 22 Step three: Plaintiff did not have an impairment or combination of 2 impairments that met or medically equaled the severity of one of the 3 listed impairments. • 4 RFC: Plaintiff had the RFC to perform light work, subject to the following additional limitations: 5 [H]e can occasionally reach overhead and can frequently reach in all other directions. He should not have concentrated exposure to hazards. He is limited to simple, routine work, in a workplace with no more than occasional workplace changes. He can have occasional superficial contact with coworkers and cannot have contact with the public. 13 6 7 8 9 10 • Step four: Plaintiff had no past relevant work. 11 • Step five: considering Plaintiff’s RFC, age, education, and work history, 12 Plaintiff could perform work that existed in significant numbers in the 13 national economy, such as routing clerk, collator operator, and document 14 preparer. The ALJ found Plaintiff’s medically determinable impairments could 15 16 reasonably be expected to produce some of the alleged symptoms but that his 17 statements concerning the intensity, persistence, and limiting effects of those 18 symptoms were “not entirely consistent with the medical evidence and other 19 evidence in the record.” 14 The ALJ therefore found Plaintiff not disabled. 20 21 13 AR 19. 14 AR 20. 22 23 ORDER - 4 Case 1:22-cv-03139-EFS filed 07/12/23 PageID.872 Page 5 of 22 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 1 2 ECF No. 17 which denied review. Plaintiff timely appealed to the Court. III. 3 Standard of Review A district court’s review of the Commissioner’s final decision is limited. 15 4 5 The Commissioner’s decision is set aside “only if it is not supported by substantial 6 evidence or is based on legal error.” 16 Substantial evidence is “more than a mere 7 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 8 mind might accept as adequate to support a conclusion.” 17 Because it is the role of 9 the ALJ to weigh conflicting evidence, the Court upholds the ALJ’s findings “if they 10 are supported by inferences reasonably drawn from the record.” 18 Further, the 11 Court may not reverse an ALJ decision due to a harmless error—one that “is 12 inconsequential to the ultimate nondisability determination.” 19 13 14 15 42 U.S.C. § 405(g). 16 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 17 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 18 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). See also Lingenfelter v. 15 16 17 18 19 20 21 22 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion,” not simply the evidence cited by the ALJ or the parties.) (cleaned up). 19 23 Molina, 674 F.3d at 1115 (cleaned up). ORDER - 5 Case 1:22-cv-03139-EFS ECF No. 17 IV. 1 filed 07/12/23 PageID.873 Page 6 of 22 Analysis Plaintiff argues the ALJ erred by (1) failing to properly assess Plaintiff’s 2 3 fibromyalgia, (2) improperly rejecting Plaintiff’s symptom reports, and 4 (3) improperly rejecting certain medical opinions. 20 For the reasons that follow, the 5 Court holds the ALJ reversibly erred by failing to address—or even mention— 6 fibromyalgia. 7 A. Plaintiff contends the ALJ erred by failing to consider fibromyalgia as a 8 9 Step Two: Plaintiff establishes consequential error. severe impairment at step two. 10 1. 11 At step two of the sequential process, the ALJ must determine whether the 12 claimant suffers from a “severe” impairment, i.e., one that significantly limits his 13 physical or mental ability to do basic work activities. 21 This involves a two-step 14 process: (1) determining whether the claimant has a medically determinable 15 impairment (MDI) and, if so, (2) determining whether the impairment is severe. 22 Step-Two, Generally 16 17 20 See generally ECF No. 10. 21 20 C.F.R. § 416.920(c). 22 20 C.F.R. § 416.920(a)(4)(ii). Objective medical evidence from an acceptable 18 19 20 21 22 23 medical source is required to establish an impairment; absent such evidence, a claimant’s symptom reports, a diagnosis, a medical opinion, or even a combination thereof, will not suffice. Id. § 416.921. ORDER - 6 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.874 Page 7 of 22 “The Social Security Regulations and Rulings, as well as case law applying 1 2 them, discuss the step two severity determination in terms of what is ‘not 3 severe.’” 23 A medically determinable impairment is not severe if—and only if—the 4 “medical evidence establishes only a slight abnormality or a combination of slight 5 abnormalities which would have no more than a minimal effect on an individual’s 6 ability to work.” 24 Therefore, an impairment is not severe if it has no more than a 7 minimal effect on a claimant’s physical or mental ability to do basic work 8 activities. 25 “Great care should be exercised in applying the not severe impairment 9 10 concept,” 26 as the step-two inquiry is simply “a de minimis screening device to 11 dispose of groundless claims.” 27 “If an adjudicator is unable to determine clearly 12 the effect of an impairment or combination of impairments on the individual’s 13 ability to do basic work activities, the sequential evaluation process should not end 14 with the not severe evaluation step. Rather, it should be continued.” 28 15 16 23 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 24 Id. 25 20 C.F.R. § 404.921(a) (2010); see SSR 85-28 at *3, Titles II & XVI: Med. 17 18 19 20 Impairments That Are Not Severe (S.S.A. 1985) available at 1985 WL 56856. 26 SSR 85-28 at *4. 27 Smolen, 80 F.3d at 1290. 28 SSR 85-28 at *4. 21 22 23 ORDER - 7 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.875 Page 8 of 22 1 2. Step Two & Fibromyalgia, Specifically 2 The Social Security Administration has recognized that cases involving 3 fibromyalgia warrant special considerations. This is because fibromyalgia (FM) is 4 both a “common syndrome” and “a complex medical condition characterized 5 primarily by widespread pain in the joints, muscles, tendons, or nearby soft 6 tissues.” 29 Thus, where a person asserts disability based at least partly on 7 fibromyalgia, the ALJ “must properly consider the person’s symptoms when 8 [deciding] whether the person has an MDI of FM.” 30 And, where a physician has 9 diagnosed it, the ALJ is instructed to find fibromyalgia as an MDI so long as the 10 record shows—as relevant here—(1) a history of widespread pain; 31 (2) repeated 11 manifestations of 6 or more fibromyalgia signs, symptoms, or co-concurring 12 conditions; and (3) that other potential disorders have been ruled out. 32 13 14 15 16 17 29 18 19 2012) available at 2012 WL 3104869. 30 SSR 12-2p at *2. 31 “A history of widespread pain” is defined as pain in all quadrants of the body and 20 21 22 axial skeletal pain that has persisted for at least 3 months. 32 23 SSR 12-2p at *2, Titles II & XVI: Evaluation of Fibromyalgia (S.S.A. July 25, See SSR 12-2p at *3. ORDER - 8 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.876 Page 9 of 22 1 3. Plaintiff’s Evidence of Fibromyalgia 2 Plaintiff has been diagnosed with fibromyalgia, something he expressly 3 noted at the administrative hearing. 33 Indeed, Plaintiff’s primary care physician 4 (PCP)—who appears to be specially trained regarding fibromyalgia 34—made 5 medical decisions based on the diagnosis, including deciding against prescribing 6 Plaintiff narcotics to address his pain. 35 Importantly, the record also contains 7 numerous treatment notes in which Plaintiff’s providers discuss objective medical 8 evidence indicative of fibromyalgia. 36 9 // 10 / 11 12 33 13 14 I’m diagnosed with fibromyalgia they said, from the pain of the injuries.”). 34 See AR 546, 557 (listing “FM” under “specialty area/advanced training”). 35 See, e.g., AR 478 (Plaintiff’s PCP declining to prescribe narcotics for his pain 15 16 17 18 19 because “that is not the proper treatment for fibromyalgia.”); AR 572, 654 (treating for fibromyalgia with duloxetine and methocarbamol). But cf. AR 760 (Plaintiff reporting that narcotics previously provided “Complete relief” as to his pain.). 36 20 21 22 23 See AR 459 (fibromyalgia diagnosis); AR 42–43 (Plaintiff testifying, “I do have – See, e.g., AR 460 (“Suspect fibromyalgia per PMR.”); AR 476 (treating 6 tender points with lidocaine/bupivacaine injection); AR 478 (“Chronic pain of both shoulders (Primary)—suspect related to fibromyalgia. Recent EMG normal.”); AR 492 (“Diffuse muscle pain, possibility of fibromyalgia.”). ORDER - 9 Case 1:22-cv-03139-EFS a. 1 ECF No. 17 filed 07/12/23 PageID.877 Page 10 of 22 History of Widespread Pain & Other Symptoms Plaintiff’s medical record supports at least a prima facia showing of a history 2 3 of widespread pain as well as repeated manifestations of 6 or more fibromyalgia 4 signs, symptoms, or co-concurring conditions. For example, Plaintiff has a 5 longstanding history of pain—particularly in his shoulders, back, neck, arms, 6 occipital region, trapezius, and abdominal region—including tenderness upon 7 palpation. 37 Additionally, Plaintiff has repeatedly presented with other relevant 8 symptoms and conditions, such as depression, anxiety, cognitive and memory 9 problems, gastroesophageal reflux disease, numbness/paresthesia, headaches, and 10 sleep problems. 38 Notably, the Administration has stated that fibromyalgia symptoms, signs, 11 12 and co-occurring conditions are “especially” noteworthy if they involve 13 “manifestations of fatigue, cognitive or memory problems (‘fibro fog’), waking 14 unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.” 39 Other 15 relevant symptoms/co-concurring conditions include—but are not necessarily 16 limited to—muscle pain, muscle weakness, headache, pain or cramps in the 17 abdomen, numbness or tingling, dizziness, insomnia, constipation, pain in the 18 19 20 37 See, e.g., AR 409, 440–42, 461, 466, 473, 476, 488, 526–27, 566–67, 595, 38 See, e.g., AR 434–37, 447, 468, 473–74, 477–78, 488, 491, 566–67. 39 See SSR 12-2p. 21 22 23 ORDER - 10 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.878 Page 11 of 22 1 upper abdomen, nausea, diarrhea, gastroesophageal reflux disorder, and blurred 2 vision. 40 Plaintiff’s medical record contains reports and findings that are varied but 3 4 match every one of the symptoms/co-concurring conditions listed above, and 5 possibly others. So, while Plaintiff’s presentation could vary significantly from 6 visit to visit, there is nonetheless evidence of the requisite “repeated 7 manifestations” of fibromyalgia signs, symptoms, and/or co-concurring conditions. 8 Moreover, the Administration has specifically noted that fibromyalgia pain “may 9 fluctuate in intensity and may not always be present,” and that its other signs and 10 symptoms “may vary in severity over time and may even be absent on some 11 days.” 41 b. 12 Ruling Out Other Conditions Finally, in trying to find what was causing Plaintiff’s assorted symptoms, his 13 14 doctors administered several tests, the results of which were apparently used to 15 exclude other disorders that might have otherwise explained the symptoms at 16 issue. Plaintiff’s providers performed x-rays, CT scans, electromyography (EMG), 17 18 19 20 40 SSR 12-2p at n.9, n.10. 41 SSR 12-2p at *2, *5. See also id. at *6 (“[T]he symptoms of FM can wax and wane 21 22 23 so that a person may have ‘bad days and good days.’”). ORDER - 11 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.879 Page 12 of 22 1 and nerve-conduction studies (NCS); all yielded unremarkable results. 42 Such 2 results are consistent with fibromyalgia, 43 yet the ALJ relied on these normal 3 results to discount both Plaintiff’s symptom reports and at least one medical 4 opinion. 44 5 4. 6 Despite Plaintiff’s allegation of fibromyalgia, his diagnosis, and the 7 supporting evidence, the ALJ’s decision never addressed fibromyalgia as a 8 potential medically determinable impairment, let alone its severity or effects on 9 Plaintiff’s functioning. Indeed, the word “fibromyalgia” does not appear anywhere 10 ALJ’s Lack of Analysis in the ALJ’s decision. 11 In contrast to the ALJ’s approach, the Administration has recognized the 12 importance of analyzing the longitudinal record in cases where a claimant alleges 13 fibromyalgia as an impairment. 45 As discussed, this record contains substantial 14 15 42 16 17 studies); AR 601 (normal CT of abdomen and pelvis). 43 See Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). 44 See AR 21–22, 24. 45 SSR 12-2p at *3 (“When a person alleges FM, longitudinal records reflecting 18 19 20 21 22 23 See, e.g., AR 357 (normal x-rays of shoulders); AR 490 (normal NCS/EMG ongoing medical evaluation and treatment from acceptable medical sources are especially helpful in establishing both the existence and severity of the impairment.”). ORDER - 12 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.880 Page 13 of 22 1 evidence—including objective medical evidence—supportive of finding fibromyalgia 2 as an impairment. Further, even if the ALJ thought there was insufficient 3 evidence to assess whether fibromyalgia qualified as a medically determinable 4 impairment and/or to determine its severity, the Administration has highlighted 5 that an ALJ may resolve such insufficiencies by arranging a consultative 6 examination, re-contacting healthcare providers, requesting additional records, 7 and/or asking the claimant and/or others for more information. 46 The ALJ erred by 8 failing to address whether Plaintiff has fibromyalgia was a medically determinable 9 impairment. 10 5. 11 Because the ALJ never addressed the issue, substantial evidence does not Consequential Error 12 support his step-two conclusion that fibromyalgia is not one of Plaintiff’s severe 13 medically determinable impairments. An error at step two will be considered 14 harmful only if it consequentially impacted the ALJ’s analysis at other steps of the 15 sequential evaluation. 47 Such is the case here. 16 17 18 46 SSR 12-2p at *4. 47 See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (“Assuming without 19 20 21 22 23 deciding that this omission constituted legal error [at step two], it could only have prejudiced [the claimant] in step three (listing impairment determination) or step five (RFC) because the other steps, including this one, were resolved in her favor.”). ORDER - 13 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.881 Page 14 of 22 The ALJ did not merely overlook fibromyalgia at step two; his decision 1 2 provides no indication that he considered fibromyalgia as a potential explanation 3 for the varied medical findings and symptom reports throughout Plaintiff’s record. 4 More, the ALJ repeatedly relied upon evidence that appears supportive of (or at 5 least consistent with) fibromyalgia when assessing—and discounting—other 6 evidence. Had the ALJ found at step two that Plaintiff had fibromyalgia as a 7 severe medically determinable impairment, it is likely that the ALJ would have 8 assessed an RFC with additional limitations. As such, the Court cannot find that 9 the ALJ’s omission was “inconsequential to the ultimate nondisability 10 determination.” 48 11 B. Reversal: Further proceedings are required. The ALJ’s error necessarily impacted nearly every aspect of his analysis, 12 13 including his assessments of the medical opinions and Plaintiff’s symptom reports. 14 Further, because fibromyalgia may result in mental symptoms as well as physical 15 symptoms, the ALJ’s failure to address it mandates remand for a complete 16 reevaluation of Plaintiff’s impairments—both physical and mental. 49 Though this means that the Court need not reach Plaintiff’s remaining 17 18 assignments of error, to provide further guidance on remand, the Court briefly 19 20 21 48 See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 49 See Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). 22 23 ORDER - 14 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.882 Page 15 of 22 1 addresses a few of the more-noteworthy issues it observed during its review of the 2 ALJ’s decision and the entirety of the record. 3 1. 4 Plaintiff’s PCP, Eileen Domingo, DO, opined that Plaintiff could not perform Dr. Domingo’s Medical Opinion 5 even sedentary work. 50 The ALJ found that Dr. Domingo’s medical opinion was not 6 supported by her own objective findings and that it was inconsistent with the 7 unremarkable x-rays. 51 However, both Dr. Domingo’s objective findings and the x- 8 rays appear to be fully consistent with fibromyalgia. 52 And while Dr. Domingo 9 listed Plaintiff’s underlying conditions as “chronic pain [bilateral] shoulders” and 10 “chronic upper back pain,” she rendered her medical opinion approximately two 11 months before she diagnosed Plaintiff with fibromyalgia. 53 On remand, 12 particularly if fibromyalgia is found to be a severe impairment, the ALJ should 13 take care in assessing whether the medical opinion is truly inconsistent with other 14 evidence. 15 16 17 50 AR 546, 557. 51 AR 24. 52 See Revels, 874 F.3d at 666; see also SSR 12-2p at *3 (explaining that the tests 18 19 20 21 used to rule-out other potential disorders “may include imaging”). 53 22 23 See AR 545 (Feb. 2020: physical functional evaluation); see also AR 459 (April 2020: fibromyalgia diagnosis). ORDER - 15 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.883 Page 16 of 22 The ALJ also found Dr. Domingo’s opinion was inconsistent with Plaintiff’s 1 2 statement that “he could lift up to twenty-five pounds.” 54 But this finding relies on 3 a questionable interpretation of the statement at issue. In July 2020, Plaintiff 4 filled out a function report, which included the below snippet. 55 5 6 7 Making every reasonable inference in favor of the ALJ, the Court reads the 8 9 relevant writing as stating, “I can’t lift o[ve]r 25 pounds . . . .” Even so, however, 10 Plaintiff’s July 2020 statement refers to the maximum he could lift at the time; he 11 gave no indication as to how frequently he could lift such a weight. In contrast, 12 Dr. Domingo’s February 2020 medical opinion accounted not only for Plaintiff’s 13 maximum lifting capacity, but also how much Plaintiff could lift frequently. 56 14 Further, the record reflects that Plaintiff engaged in physical therapy, and the 15 reports regarding his lifting capacity tended to improve from February 2020 to July 16 17 18 19 54 AR 24. 55 AR 246. 56 Dr. Domingo’s opinion defined “frequently” as performing the function for “2.5 to 20 21 22 23 6 hours out of an 8 hour day.” AR 546. See also AR 545 (“difficulty lifting >5 lbs.”). ORDER - 16 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.884 Page 17 of 22 1 2020. 57 Plus, to the extent such limitations may be attributed to fibromyalgia, 2 such symptoms can generally be expected to wax and wane. 58 Thus, when the 3 record is considered as a whole, Plaintiff’s single statement from July 2020 does 4 not amount to substantial evidence in support of rejecting Dr. Domingo’s February 5 2020 medical opinion. 6 2. 7 Licensed psychologist, David T. Morgan, PhD, conducted a psychological Dr. Morgan’s Medical Opinion 8 evaluation of Plaintiff in January 2020. Dr. Morgan diagnosed Plaintiff with panic 9 disorder and major depressive disorder, recurrent episode, moderate. 59 Dr. Morgan 10 assessed Plaintiff with a marked limitation in the ability to “[p]erform activities 11 12 57 13 14 15 16 17 18 19 20 21 more than 5 lb.”); AR 474 (March 2020: “Unable to lift anything more than 10 lb.”); AR 499 (April 2020: physical therapist noting, “Flexion, ER and Scaption remain weak at 4-/5, rhomboid strength improved from 3+/5 to 4-/5.”); AR 237 (June 2020: Plaintiff’s girlfriend reporting that he could lift a maximum of 10 pounds.). Such improvement is further consistent with Dr. Domingo’s opinion, as he said that with proper treatment, the assessed limitations were expected to last only 1–3 months. See AR 546, 557. The ALJ made no mention of this limited duration or its significance, if any. 58 See SSR 12-2p at *2, *5, *6; Revels, 874 F.3d at 663. 59 AR 434. 22 23 See AR 467, 547, 557 (Feb. 2020: “Patient states that he is unable to lift anything ORDER - 17 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.885 Page 18 of 22 1 within a schedule, maintain regular attendance, and be punctual within customary 2 tolerances without special supervision.” 60 The ALJ, however, found Dr. Morgan’s 3 opinion “only somewhat persuasive,” explaining that “the other evidence of record 4 is not consistent with any marked limitations because a consultative examiner 5 noted that the claimant was able to focus and concentrate on questions and answer 6 appropriately and could follow a three-step command.” 61 The ALJ’s analysis gives short shrift to the evidence of record suggesting 7 8 Plaintiff has issues with concentration and/or memory. 62 Indeed, in the very record 9 to which the ALJ cites, the examiner also found, in relevant part, as follows: The claimant’s ability to . . . understand, remember, and carry out complex instructions is poor based on cognitive performance and his current psychiatric concerns. . . . 10 11 12 13 14 60 AR 435. 61 AR 24. 62 See, e.g., AR 437 (Jan. 2020: Dr. Morgan finding Plaintiff’s recent and immediate 15 16 17 18 19 20 21 22 23 memory “challenged” and his concentration and abstract thoughts not within normal limits); AR 450 (March 2020: psychiatric examiner noting test results indicative of concentration problems); AR 176 (Nov. 2019: disability interviewer noting Plaintiff demonstrated difficulty concentrating); AR 41 (June 2021: Plaintiff testifying to difficulty paying attention); AR 201 (Jan. 2020: Plaintiff reporting concentration problems); AR 246 (July 2020: same). ORDER - 18 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.886 Page 19 of 22 2 The claimant’s ability to sustain concentration and persist in workrelated activity at a reasonable pace, including regular attendance at work and completing work without interruption is poor to fair . . . . 63 3 The ALJ also seemingly ignored that the symptoms of many mental impairments 4 (as with those of fibromyalgia) may tend to wax and wane—meaning an isolated 5 “normal” finding will rarely suffice to undermine the informed opinion of a trained 6 medical expert. 64 1 Most importantly, the ALJ failed to explain why any evidence of Plaintiff 7 8 demonstrating adequate focus/concentration would tend to undermine 9 Dr. Morgan’s medical opinion. Dr. Morgan focused on the effects of Plaintiff’s 10 depression and panic disorder. 65 There is little, if anything, to suggest that the 11 marked limitation assessed by Dr. Morgan had anything to do with Plaintiff’s 12 concentration problems. Nor is there anything inherently inconsistent about 13 14 63 AR 451. 64 See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (Noting it is error to 15 16 17 18 19 20 reject evidence of a mental impairment “merely because symptoms wax and wane,” and explaining, “Cycles of improvement and debilitating symptoms are a common occurrence . . . .”); see also id. at 1018 (explaining that the data points chosen by an ALJ “must in fact constitute examples of a broader development”). 65 21 22 23 See AR 434 (noting several associate symptoms, such as depressed mood, anhedonia, fatigue, and recurrent panic attacks). But see id. (also including “poor concentration” among the several symptoms associated with Plaintiff’s depression). ORDER - 19 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.887 Page 20 of 22 1 Plaintiff demonstrating adequate focus/concentration while also being markedly 2 limited in his ability to maintain regular attendance as a result of his depression 3 and panic disorder. The ALJ therefore failed to articulate any true inconsistency, 4 much less one that would warrant rejecting Dr. Morgan’s medical opinion. V. 5 Conclusion & Instructions on Remand Because the ALJ’s failure to address fibromyalgia necessarily impacted other 6 7 aspects of the sequential analysis, the Court remands this case for the ALJ to 8 conduct the step-five evaluation anew. If necessary, the ALJ on remand shall 9 further develop the record, which may include (1) arranging for a medical expert 10 trained in fibromyalgia to conduct a consultative examination of Plaintiff, and/or 11 (2) calling a medical expert trained in fibromyalgia to present testimony. On remand, the ALJ is to expressly consider fibromyalgia as a potential 12 13 medically determinable impairment and address how it weighs on his evaluation of 14 the medical evidence and Plaintiff’s symptom reports. The ALJ should account for 15 the fact that the signs and symptoms of fibromyalgia “may vary in severity over 16 time and may even be absent on some days.” 66 The ALJ should also be mindful 17 that physical examinations showing mostly normal results are generally 18 considered “perfectly consistent with debilitating fibromyalgia.” 67 19 20 21 66 SSR 12-2p at *5. See also Revels, 874 F.3d at 663. 67 See Revels, 874 F.3d at 666. 22 23 ORDER - 20 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.888 Page 21 of 22 With respect to the medical-opinion evidence, the ALJ must meaningfully 1 2 articulate the supportability and consistency of each medical opinion. Reviewing 3 courts are “constrained to review the reasons the ALJ asserts.” 68 If the ALJ 4 discounts a medical opinion based on a perceived inconsistency, the ALJ should 5 include sufficient explanation and citations to show (1) that an inconsistency truly 6 exists, and (2) why the inconsistency tends to undermine the medical opinion in 7 question. 69 Similarly, if the ALJ again discounts Plaintiff’s symptom reports, the 8 ALJ must articulate clear and convincing reasons for doing so. 70 General findings 9 are insufficient. 71 The ALJ must identify what symptoms are being discounted and 10 what evidence undermines these symptoms. 72 11 12 68 13 14 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 69 15 16 17 18 examining or treating doctor’s opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.”). 70 Ghanim, 763 F.3d at 1163 (quoting Lingenfelter, 504 F.3d at 1036). 71 See Garrison, 759 F.3d at 1010. 72 Id. (quoting Lester, 81 F.3d at 834, and Thomas v. Barnhart, 278 F.3d 947, 958 20 22 23 See 20 C.F.R. § 416.920c(a), (b)(2), (c)(2); see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“Even under the new regulations, an ALJ cannot reject an 19 21 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Connett v. (9th Cir. 2002) (requiring the ALJ to sufficiently explain why he discounted claimant’s symptom claims)). ORDER - 21 Case 1:22-cv-03139-EFS ECF No. 17 filed 07/12/23 PageID.889 Page 22 of 22 Throughout the sequential evaluation process, when relying upon examples 1 2 to support a finding, the ALJ should ensure that they amount to a fair 3 representation of the record as a whole. “While ALJs obviously must rely on 4 examples . . . the data points they choose must in fact constitute examples of a 5 broader development . . . .” 73 It is improper for an ALJ to “reach a conclusion first, 6 and then attempt to justify it by ignoring competent evidence in the record that 7 suggests an opposite result.” 74 8 Accordingly, IT IS HEREBY ORDERED: 9 1. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff. 10 2. The ALJ’s nondisability decision is REVERSED, and this matter is 11 REMANDED to the Commissioner of Social Security for further 12 proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 3. 13 The Clerk’s Office shall TERM Plaintiff’s Opening Brief, ECF No. 10, 14 and the Commissioner’s Brief, ECF No. 15, and CLOSE the case. 15 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and 16 provide copies to all counsel. DATED this 12th day of July 2023. 17 18 EDWARD F. SHEA Senior United States District Judge 19 20 21 73 Garrison v. Colvin, 759 F.3d 995, 1018 (9th Cir. 2014). 74 Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 22 23 ORDER - 22
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